This is Part Two in a two-part series of columns by Professor Dorf. Part One appeared here on Justia’s Verdict on January 17, 2013. –Ed.

Yesterday was the fortieth anniversary of the Supreme Court’s Roe v. Wade decision, which recognized a constitutional right of a woman to have an abortion. Last week, in Part One of this two-part series, I responded to three common criticisms of Roe: (1) that abortion is not mentioned in the Constitution; (2) that Roe departs from the original understanding; and (3) that the Roe Court erred by resolving a divisive social controversy. I argued that none of these criticisms distinguishes Roe from the great mass of well-accepted constitutional decisions of the Supreme Court, including decisions that are rightly cherished.

In this column, I explore a different criticism, one that has often been voiced by people who support Roe’s bottom line: that the Court in Roe went too far, too fast. As then-Judge Ruth Bader Ginsburg put the point in a 1993 lecture delivered shortly before she was appointed to the Supreme Court, the ruling in Roe created “a regime blanketing the subject, a set of rules that displaced virtually every state law then in force.” In so doing, Ginsburg argued, the Court cut short a “dialogue” with state legislators that, if permitted to run its natural course, “might have served to reduce rather than to fuel controversy.”

Ginsburg’s critique of Roe has been endorsed by others, including judges and scholars who, like Ginsburg, have agreed with the Roe Court that the Constitution protects a right to abortion. As I shall explain, however, the “too far, too fast” critique was probably mistaken from the beginning and the passage of time has confirmed that conclusion.

Roe’s Supposedly “Breathtaking” Scope

Justice Ginsburg’s 1993 lecture described Roe as “breathtaking” in scope. Noting that the Texas law at issue in the case “intolerably shackled a woman’s autonomy” by criminalizing abortion except when necessary to save her life, Justice Ginsburg suggested that the Roe Court could have simply declared the law unconstitutional without setting forth further rules about when and how the states may regulate abortion.

In a similar vein, some commentators have suggested that the Court lacked the authority to fashion rules governing abortion because fashioning rules is the role of a legislature. Courts, in this view, simply decide cases.

This view cannot be taken seriously, or at least cannot be taken literally. American courts routinely make law, albeit in the course of deciding cases. They do so by supplying reasons for their decisions, and those reasons are then generalized to state rules for future cases. If the Court in Roe had declared the Texas abortion statute unconstitutional, it would have had to state a reason for that ruling, and that reason would have been appropriately generalized to create a rule.

Accordingly, Justice Ginsburg and others who criticize Roe for being too “rule-y” must mean that the Court erred by prescribing highly detailed rules that went beyond what was necessary to decide the case. Ginsburg’s lecture contrasts the Court’s approach in Roe with its more “cautious” approach to cases involving explicitly sex-based classifications. She thus suggests that the one-step-at-a-time approach in the latter cases played a role in the country’s relatively rapid acceptance of the sex discrimination cases, while Roe’s detailed rules contributed to the resistance to abortion rights.

But the evidence suggests otherwise.

A Counter-Example: Miranda v. Arizona

Justice Ginsburg and the other proponents of the view that Roe went too far, too fast might be understood to be making a general claim that judicial decisions are most likely to be accepted by the People when they make only incremental change, allowing legislative buy-in along the way. Such a claim appeals to intuitions about human nature: We are creatures of habit, including habits of mind, and so if we are to change our views, we need to be brought along slowly.

Yet this is at best pop psychology unsupported by any kind of systematic investigation. Justice Ginsburg’s 1993 lecture pointed to the sex discrimination cases to show that a steady-as-she-goes approach can work. But one could as easily point to another case in which the Court announced detailed rules all at once: the 1966 decision in Miranda v. Arizona, which set forth detailed rules for custodial interrogation by police.

Like Roe, Miranda was denounced as being too rule-like, and thus going beyond the judicial role. Nonetheless, studies show that Miranda has garnered widespread support within the law enforcement community, which initially criticized it. Indeed, some commentators argue that the very clarity of Miranda’s detailed rules facilitated its acceptance.

Accordingly, without a more nuanced picture, it is impossible to say in the abstract that greater social and legal consensus would have arisen if the Court had moved more cautiously with respect to abortion than it did.

The Myth of Legislative Reform

How might we figure out whether abortion is more like express sex discrimination—where a cautious case-by-case approach worked—or more like police interrogation—where an all-at-once Supreme Court-imposed set of rules worked? In her 1993 lecture, Justice Ginsburg suggested that the answer can be found in the trend towards abortion-regulation liberalization that Roe interrupted. Citing Roe itself and an earlier article of her own (which, in turn, cited newspaper articles from the 1970s), Ginsburg claimed in the lecture that, left more to their own devices, state legislatures would have liberalized their abortion laws. Other commentators, including Harvard Law Professor Mary Ann Glendon, have made the same claim.

Yet the most careful studies of the relevant period reveal that legislative reform had either failed entirely, or stalled far short of acknowledging the right that was recognized in Roe. Moreover, the pro-life movement—which many commentators erroneously claim originated in response to Roe—had already begun to organize to seek to undo what modest legislative reforms had been won in the most liberal states.

Interested readers would do well to consult Chapter 3 of Harvard Law Professor Laurence Tribe’s Abortion: The Clash of Absolutesor SUNY-Buffalo Vice Provost Lucinda Finley’s Chapter 10 of my book, Constitutional Law Stories. Each of these sources shows how the claim that Roe interrupted a movement towards abortion reform is at best highly speculative.

State Resistance Undermines the Too-Far, Too-Fast Claim

Notwithstanding the flaws I have identified in the claim that Roe went too far, too fast, in 1993, when Justice Ginsburg gave her lecture, it was at least possible to think that greater give and take between the Court and state legislatures—what Ginsburg called “dialogue”—might have led to greater acceptance of Roe. After all, one can never know exactly how history would have unfolded in a counterfactual world.

The ensuing years, however, further undermine the too far, too fast hypothesis. In 1992, in Planned Parenthood v. Casey, the Supreme Court eased up on the level of scrutiny that courts would thereafter apply to state regulations of abortion falling short of outright prohibitions. Where Roe required that nearly all such laws would be invalid in the first trimester of pregnancy and subject to exacting scrutiny thereafter, under the standard announced in Casey, state legislatures would have considerably greater room to enact regulations throughout pregnancy.

Did the Court’s drawing back from Roe in Casey lead to greater dialogue? Hardly. States in which pro-life legislators hold the political edge have instead exploited the extra wiggle room that the Court afforded them in Casey to enact laws that aim to make the abortion right increasingly difficult to exercise.

A recent column here on Justia’s Verdict by Sherry Colb analyzes one such law in detail—Ohio’s limitations on medical abortions. More generally, the trend is unmistakable. In the years since Casey, states have enacted hundreds of measures restricting abortion. Contrary to the too far, too fast hypothesis, allowing the states greater latitude has not led to liberalization or consensus.

Roe remains as divisive as ever, but as I emphasized in the first column in this two-part series, the reason for its continuing divisiveness has little to do with how the original opinion was crafted, for good or for ill. Law—including constitutional law—exists in a social context. Americans are divided about abortion: some are strongly pro-choice; some are strongly pro-life; a great many are ambivalent. Those divisions, more than anything else, account for the ongoing controversy. Thus, it is high time to stop beating up the ghost of Justice Harry Blackmun, Roe’sreluctant author.

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